Lathrop v. Brown

23 Iowa 40

• Court: Supreme Court of Iowa
• Decided: July 31, 1867
• Status: Published

Opinion

Cole, J.

i judgment Ser junior judgment. It will be seen from the agreed statement. of facts, that the judgment of Daily, under which the defendant Brown claims, was first rendered; but the first sale was under plaintiff’s judgment, p¡? judgments were alike liens upon the real estate in controversy, the defendant’s title would, in .such case (if the judgment defendant William Green was the owner and holder of the legal title) be the best.

2. — mamaaal property of partner. But Daily’s judgment was against tlie firm of Green & Co., of which firm William Green was a member. The suit of Daily was against the firm of Green & , , ,. , - - Co., and did not disclose the individual names of the members of the firm. Whether the judgment in such case was a lien upon the individual property of the members of the firm, has never been directly decided by this court. Sed vide Lewis et al. v. Conrad et al., 11 Iowa, 153; Davis & Co. v. Buchanan & Bone, 12 Id. 575; and Hamsmith v. Espy, 13 Id. 439. In the last cited case, it was said, if a partnership' is sued in its firm name a scire facias is necessary in order to reach individual property.

The judgment of Daily was recovered while the Code of 1851 was in force.

That Code provided, “ See. 1690. Partners may sue or be sued either in their partnership name- or by setting forth their individual names, at the option of plaintiff.” “Sec. 1691. If suing or sued in their partnership name, their individual property may be made liable to any judgment against them unless sufficient cause be shown to the contrary.” In lieu of these two sections, our Eevision has provided, “ See. 2785. A copartnership may sue or be sued in its firm name, and when so sued the individual property of any member of such firm may, on scire facias, be made liable to the judgment, unless he show cause to the contrary. A copartnership may also sue nr be sued in the individual names of its members.”

The commissioners of the revision, in their report to the legislature, make the following remarks in relation to the section last quoted : “We recognize in a copartnership, a party other than and different from any of or all its members, having a purse of its own, and that a creditor of it has a right to sue it, and get a judgment against it and levy on its goods.”

The provisions of the Code of 1851 are not materially different from the Revision of 1860, except that the latter provides the mode, on scire facias, whereby the individual property may be made liable. This statutory mode, however, would probably not be held to be exclusive, or the only mode in which the individual property may be reached.

In view of these statutory provisions, it may be true, as the District Court decided, that “ the judgment against the firm collectively, was not a lien on the individual property of William Green.” We say it may be correct, because we do not deem it necessary to definitely and conclusively determine that question, in order to decide this case.

3. — of tie federal courts. The same is true as to the question whether the judgment of Lathrop et al. against the individual members of the firm of Green & Co., rendered in the ' United States District Court for the northern district of Iowa, in the county of Dubuque, was a lien upon the real estate of the defendant therein, William Green, situated in the county of Black Hawk. Judgments at the common law, aside from any statute, were not liens upon the real estate of the judgment defendants. Lamb v. Shays, 14 Iowa, 567; Welton v. Tizzard, 15 Iowa, 495 (top of page 499). The lien of a judgment is, therefore, dependent upon statute, and extends so far, and so far only, as the statute declares. We have not been directed or cited to any United States statute making judgments of the federal courts liens upon the real estate of the judgment debtors. In the absence of any such statute (conceding the power to enact one), our own State statute would control the right to and extent of the judgment liens in this State. Our statute provides- (Rev. § 4105 [2485] to 4109 [2489]), that judgments of the Supreme and District Courts of this State, and of the-District and Circuit Courts of the United States, shall be liens upon the real estate of the defendants in the county wherein, and from the date the judgment was rendered; that attested copies may be filed and docketed in other counties, and become liens from the date of docketing and indexing; all which liens continue for ten years from date of judgment. These considerations would lead us to say that it may be true that a judgment of the United States District Court is not a lien upon the real estate of the judgment debtor, situated in another county than that wherein the judgment was rendered or copy filed and docketed as above specified. We say it ma/y be true, because we do not deem it necessary to directly adjudicate this question in order to determine this case.

4>-_priority °f hen. If it be true that neither the judgment of Daily .or of Lathrop et al. was a lien on the property of William Green, situated in the county of Black Hawk, folios that, if Lathrop et al. first seized the property of William Green by actual levy of execution, the first lien would attach in their favor. This would certainly be so, if we apply the same rule to real estate which we apply to personal property not subject to judgment lien; for, in this State, as to personal property, the lien does not attach until actual levy. Reeves & Co. v. Sebern, 16 Iowa, 234.

We are now brought to the application of the questions of liens as they relate to the particular facts of this case. Two of these facts are so material that they control the rights of the parties to this litigation: First, William Green never held any legal title to the property in controversy. By mistake, the deed to him conveyed other lands, and not the lands in controversy. Second, the. firm of Green & Co. were the equitable owners of the property at the time of the rendition of Daily’s and plaintiff’s judgments, and at the time of both levies and s'ales.

5wUtmte°r-operates!1611 Under our statutes, judgments are liens tipon all interests in real estate, legal or equitable. Cook & Sargent v. Dillon et al., 9 Iowa, 407; Crosby v. Elkader Lodge, 16 Id. 399; Blaney v. Hanks, 14 Id. 400. And it is wholly immaterial, as between the parties, whether the interest of the judgment debtor appears of record or not. Denegre v. Hann et al., 13 Iowa, 240.

6tiraoíaS?oica‘ ™ip:anarSlii vidual prop-This being so, the judgment of Daily against'Green & Oo. was a lien upon their interest in the real estate in controversy. That interest was the actual ownership of the property; it was purchased py ^em ail<j for them, and their means paid for it, but the mere naked legal title was still in the' former owner, McGart.

At the time Green & Co. acquired the right to the property, it was intended to convey the naked legal title to William Green, for the benefit of the firm; but, by mistake, this was not done, and it remained in McGart. So that William Green never held the legal title, nor did he, as an individual, ever have any equitable interest in it; whatever claim or interest he had was as a member of the firm of Green & Co.

7. jotosient: property flrm: member^11 name. , The judgment of Daily was against Green & Co., as a firm, and was a lien upon their interest in the property in controversy, from the date of the judgment, The Daily judgment was rendered before the judgment of Lathrop et al., under which the plaintiff claims, and the lien of the former, upon the real estate of Green & Co., was paramount to the latter, although the latter was rendered against the individual members of the firm. Nor was this paramount lien of the judgment at all affected by the sale under the Lathrop judgment having been first made. Standing upon their rights as judgment creditors of the firm of Green & Co., Daily is first and best. The exeeution issued upon the Daily judgment was levied upon the property in controversy “ as the property of William Green,” and was sold as such; the defendant Drown succeeding to the rights of the purchaser, by assignment to him of the certificate of sale, under which the deed, by Brown’s direction, was made to Webster, in trust for Drown. This certificate and deed could not operate to pass the legal title to the purchaser anfi grantee, even if William Green had been the holder of the title. And this for two reasons: First, the execution was not against William Green, and gave no authority to the officer to levy upon his property; and the seizure and sale of it as his property, being without authority, was simply void; and, second, the property was not levied upon or sold as the property of Green & Co.,- and hence their rights did not pass by the sale and deed. While it would have been competent for 'the officer to have seized and sold the property, under the execution, as the property of Green & Co., or to have seized and sold it by virtue of the execution, without specification, in the levy, as to whose property, and thereby to have passed the title of Green & Co., yet he did not do so, 'and the purchaser claiming under the levy, sale and deed, can take no more than by their terms they purport to convey.

The purchaser at the marshal’s sale under their judgment and execution in favor of Lathrop et al. against William Green and others, members of the firm of Green & Co., acquired the title or right of William Green in and to the land, subject to any prior lien thereon. But we have seen, as set forth in the agreed statement of facts, that William-Green was not the holder of the legal title, and, therefore, that did not pass to the purchaser; nor was 'he, as an individual, possessed of any equitable right to the property, and, therefore, none such passed to the purchaser. If it be said that he had an. equity, therein as a member of tbe firm of Green & Go., which might be levied on and sold under an execution against him individually; it may be replied thereto that such equity was subject to the lien of the prior judgment in favor of Daily against the firm; and, therefore, that whatever interest was thus acquired by the purchaser, was subject to such prior lien.

Now, it is this purchaser under the Lathrop et al. judgment, himself a plaintiff in the execution, who brings this suit in equity to perfect and quiet his title under his execution sale and deed. Upon what does his claim rest ? Let us see. First, the judgment under which he claims is junior to that under which the defendant claims. Second, the judgment debtor under whom he claims title never had any title, either legal or equitable. Third, his judgment was probably never a lien upon the prop-. erty in controversy, and his only right or claim„ thereto grows out of his execution, levy and sale. His whole claim, therefore, rests upon this : That but for a mistake of fact, his judgment and execution,-defendant would have been the holder of a bare or naked legal title. "Without stopping to discuss what would have been the rights of the plaintiff if William’ Green had been the holder of the legal title, at the date of the judgments, execution sales and deeds, we simply determine that in this case, the plaintiff did not acquire by his purchase such an equity in the property, as against defendant, as will justify a court of chancery in setting aside the prior lien and older equity of the defendant, in order to perfect plaintiff’s title. Blaney v. Hanks, 14 Iowa, 400; Bartle v. Wallace et al., 21 Id. 346; Vannice v. Bergen, 16 Id. 555; Evans v. McGlasson, 18 Id. 150; Butterfield v. Walsh, 21 Id.

By the agreed statement of facts, it appears that the defendant Brown was the owner of the certificate of sale under the Daily judgment, and that by his direction the deed was made to defendant Webster. This agreed statement is signed by Webster, as well as by Brown and Lathrop. Webster, therefore, holds the title or equity, whatever it may be, acquired by that sale and deed, in trust for Brown; and the subsequent deed by MbGart to Webster, made as is stated “ for the purpose of correcting said mistake, and of perfecting the title to said premises,” would inure to the benefit of Brown; it being held by Webster in trust for him. But the fact that the legal title is thus held for Brown, ought not, under the circumstances of this case, to operate so as to defeat the equities of the plaintiff, whatever they may be.

In view of all the facts in the case, it appears to us that substantial justice will be subserved by reversing the judgment of the District Court and remanding the cause, with directions to set aside the sale under the Daily judgment and cancel the credit made thereby, to permit the defendant Brown to have a new execution indorsed for his benefit, issued on the judgment, and thereunder to sell the real estate in controversy as the property of Green & Co., unless the plaintiff elects to -redeem from the lien of the Daily judgment, in which latter case the defendant Webster will convey by special warranty against incumbrances, etc., by himself, to the plaintiff, and his title will be quieted.

In case the property is sold under execution, Webster will make a like conveyance to the sheriff’s grantee. The costs of the District Court will be equally divided between Lathrop and Brown. The appellee will pay the costs of this court.

Reversed.